EXHIBIT 10.5
EXECUTED AGREEMENT
PLAYBOYTV/SOUTH KOREA
"ATV"/SOUTHKOREA
MEMORANDUM OF UNDERSTANDING
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(As of February 26, 1997)
1. Overview and Definitions
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1.1 This Memorandum of Understanding ("Agreement") sets forth the terms
for the formation of a limited liability company or a joint stock corporation,
as shall be mutually determined by the parties, organized under the laws of
South Korea (the "Venture") by Daewoo Corporation, a corporation organized under
the laws of South Korea ("Daewoo"), and the Playboy Entertainment Group, Inc., a
corporation organized under the laws of Delaware ("PEGI"), that will operate
initially one and eventually two adult oriented pay television services (the
"Services") throughout the Territory (as defined below): (a) Playboy TV/South
Korea ("PTVSK"), a Service based on Playboy TV as currently programmed in the
United States, and (b) another Service, the name of which is to be agreed upon
between the parties ("ATV"), which will consist of a mix of programs to be
supplied by Daewoo and PEGI as provided below.
As and to the extent set forth in Section 8 and Section 9, programming
supplied to PTVSK and ATV will be exclusive to the Services in the Territory
with respect to all forms of Non-Standard Television (as defined in Section 8
below).
The parties agree to use their respective best efforts to negotiate and
execute more formal agreements, including the Superseding Agreements described
below, as soon as reasonably practicable, and the parties intend that such
agreements will be executed within 90 days of the date hereof. Such Superseding
Agreements will incorporate the terms of this Agreement and such other terms as
the parties may mutually agree. In furtherance of such best efforts obligations,
the parties will cause their respective executives authorized to make final
decisions regarding these transactions and their counsel and other advisors to
be available on a first priority basis. Until such Superseding Agreements are
executed and if such Superseding Agreements are never executed, this Agreement,
when executed by both Daewoo and PEGI and after attachment of the initial
Business Plan, will constitute a binding agreement between the parties with
regard to all matters covered herein. Specifically, any terms described herein
to be included in a Superseding Agreement will, until such Superseding
Agreement is executed and if such Superseding Agreement is never executed, be
fully
operative as terms of this Agreement. Upon execution of the Superseding
Agreements, this Agreement will terminate and be of no further force and effect.
1.2 The PTVSK Service initially will be offered to hotels. The Venture
will use its reasonable good faith efforts to launch the PTVSK Service in other
forms of, and the ATV Service in all forms of, Non-Standard Television as soon
as legally feasible and commercially practical (as mutually determined by
Daewoo and PEGI in good faith and based upon reasonable business criteria taking
into account the interests of the Venture and each of the respective Venturers),
with the current outside target date for launch of the PTVSK Service in pay
cable, direct broadcast satellite ("DBS") and other forms of direct-to-homes
delivery, and to inns, beginning January, 1999.
1.3 Terms used in this Agreement are defined in Exhibit "A" attached
hereto, which includes a list of the terms defined in the text of this
Agreement.
2. Superseding Agreements
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It is contemplated that the Venture, the parties and their respective
affiliates (as the case may be) will execute the following agreements in
connection with the formation of the Venture, all of which will be subject to
the mutual approval of the parties (the "Superseding Agreements"):
2.1 Shareholders Agreement and Articles of Incorporation. Daewoo and PEGI
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(together, the "Venturers") will enter into a Shareholders Agreement and
Articles of Incorporation (collectively, the "Shareholders Agreement"), which
will establish the Venture and outline the structure of the Venture, including
board/governance issues, ownership provisions, option mechanisms and price,
termination provisions, minority owner protections, etc. The Shareholders
Agreement will contain the terms set forth in Section 15 (Venture Ownership,
Capitalization and Governance) and such further terms as the Venturers may
mutually agree. The parties acknowledge and agree that it is not their intention
by executing this Agreement to form a partnership or other entity prior to the
formation of the Venture and the execution of the Articles of Incorporation and
agree that neither party will take any action that may subject the other to any
liability, including but not limited to making any agreements or incurring any
obligations on behalf of the Venture prior to such formation and execution.
2.2 Program Supply Agreement for PTVSK. PEGI and the Venture will enter
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into a Program Supply Agreement under which PEGI will license programming to the
Venture for PTVSK and receive compensation for such programming (as described in
Sections 8,9,10 and 11 below).
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2.3 Trademark License Agreement.
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2.3.1 Playboy Enterprises, Inc. ("PEI") and the Venture will enter
into a Trademark License Agreement (the "Trademark License Agreement") under
which PEI, for a ***% royalty (as described in Section 12 below), will grant to
the Venture those rights to the "Playboy" name, marks, etc. as are necessary for
the effective marketing of the PTVSK Service. The Trademark License Agreement
will contain PEI's customary approval rights and procedures for trademark usage
and advertising, substantially as detailed in the Trademark Usage Summary
attached hereto as Exhibit "B" (subject to such modifications as may be agreed
upon between the parties in negotiating the Superseding Agreements), the terms
described in Section 12 below, and such further terms as the parties may
mutually agree. If any term in the text of this Agreement is inconsistent with
the provisions of such Trademark Usage Summary, the term as contained in the
text of this Agreement will prevail.
2.3.2 The Venture may choose to license (as described in Section 12
below) from PEI the rights to use the trademark "AdulTVision" and certain
related trademarks in connection with ATV, in which case PEGI will cause PEI to
grant such license. Alternatively, the Venture may develop another name and
related trademarks for use, subject to the approval of Daewoo and PEGI, as the
name of and in connection with ATV. In such event, the Venture will be deemed
the owner of such approved name and related trademarks (as described in Section
12 below).
2.4 Program Supply Agreements for ATV.
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2.4.1 PEGI and the Venture will enter into a Program Supply Agreement
under which PEGI will license programming to the Venture for ATV and receive
compensation for such programming (as described in Sections 8, 9, 10 and 11
below).
2.4.2 Daewoo and the Venture will enter into a Program Supply
Agreement under which Daewoo will license programming to the Venture for,
initially PTVSK, and eventually ATV, and receive compensation for such
programming (as described in Sections 8, 9, 10 and 11 below).
2.5 Management Services Contract. The Venture and Daewoo or a Daewoo
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affiliate generally engaged in delivering such services will enter into a
Management Services Contract under which Daewoo or such Daewoo affiliate
("Management Co.") will, for a ***% fee (as described in Section 14.3 below),
provide back office support services for the Venture. The nature and scope of
the services to be provided pursuant to the Management Services Contract will be
agreed upon in negotiating the Superseding Agreements.
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
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These documents together with the Business Plan (Section 3), and any other
documents required by applicable law or deemed necessary by the parties, will
constitute the formal agreements which establish and govern the Venture.
3. Business Plan/Annual Fiscal Year Budgets
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3.1 The Venturers will agree, within 60 days after the date of execution
hereof, to a 10-year business plan which will be attached hereto as Exhibit "C"
and will form a part of this Agreement, subject to such changes as to which the
parties shall mutually agree prior to the commencement of the Venture (as so
modified, the "Business Plan"). The Business Plan will be the financial model
for the operation of PTVSK and ATV and will be incorporated into the
Shareholders Agreement. Prior to the end of the fifth year of the Venture and
prior to the end of every succeeding five year period thereafter, the Venturers
will prepare 5 additional years of the Business Plan such that the Business Plan
continues to have between five and ten years of coverage throughout the term of
the Venture. Such additions to the Business Plan will require the approval of
both Venturers.
3.2 The Business Plan will be updated annually by a budget (each, an
"Annual Budget") for the coming fiscal year. The Venture's Representative
Director (See Section 15) will prepare the Annual Budget and present it to PEGI
and Daewoo for approval at least 90 days prior to commencement of the applicable
fiscal year. The approved Annual Budget for a given fiscal year will supersede
the data contained in the original Business Plan for that fiscal year. The
Annual Budget for any fiscal year will require the approval of both Venturers.
The Annual Budget for fiscal 1997 is included in the Business Plan.
3.3 If the Venturers fail to agree on or approve any matter arising out
of or relating to this Agreement which requires such agreement or approval,
including without limitation a failure to agree or to grant their approval under
Section 3.1 or Section 3.2, the matter will be resolved according to the dispute
resolution provisions of Section 20. During the pendency of any dispute
involving approval of the Business Plan or an Annual Budget, the then existing
Business Plan or the Annual Budget for the fiscal year immediately preceding the
fiscal year of the Annual Budget in dispute, as the case may be, shall continue
in force.
4. Territory
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The "Territory" means South Korea.
5. Services; Availability; Etc.
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5.1 PTVSK Service. Initially, the PTVSK Service will operate from 8:00
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p.m. until 4:00 a.m. (Korea time).
5.2 ATV Service. If and when government regulations permit and market
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conditions make it commercially practical (as mutual determined by Daewoo and
PEGI in good faith based upon reasonable business criteria taking into account
only the interests of the Venture), the Venture will launch the ATV Service.
Following such launch, each Service will exhibit a minimum of 6 hours of
programming per day, in each case 4 hours of which shall be exhibited between
8:00 p.m. and 2:00 a.m. (Korea time). The Superseding Agreements will provide
decision-making procedures on this matter.
5.3 Viewer Purchase Options. Initially, when offered in forms of
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Non-Standard Television beyond pay per view by tape delivery to hotels, the
Services will be offered on a monthly or annual subscription basis only. If and
when market conditions make it commercially practical (as mutually determined by
Daewoo and PEGI in good faith based upon reasonable business criteria taking
into account only the interests of the Venture), pay per view will be added.
5.4 Initial Availability. Initially, the PTVSK Service will be available
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on a pay per view basis by tape delivery to hotels. The ATV Service shall be
launched and made available in such forms of Non-Standard Television as mutually
determined by Daewoo and PEGI. For purposes of this Agreement, commencement of
availability of a Service to hotels or any other form of Non-Standard Television
constitutes a launch of such Service.
5.5 Continuous Programming. If and when market conditions make it
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commercially practical (as mutually determined by Daewoo and PEGI in good faith
based upon reasonable business criteria taking into account only the interests
of the Venture), the Services will be made available on a 24-hour per day basis.
5.6 Promotion. All sales, advertising and marketing programs for the
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Services shall be subject to Daewoo's and PEGI's reasonable approval.
6. Term
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6.1 Term. The Venture shall continue in perpetuity until and unless
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terminated pursuant to Section 6.2.
6.2 Early Termination.
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6.2.1 Either Venturer may terminate the Venture if controlling
ownership of the other Venturer changes (other than a permitted change to an
affiliate of such
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Venturer). Any such termination will be effective as of the last day of the
fiscal year in which such termination event occurs.
6.2.2 With respect to a particular Service (i.e., PTVSK or ATV)
and starting at the end of the seventh fiscal year of the Venture, either party
may terminate that Service if its actual operating income for the previous 3
fiscal year periods is below projections in the Business Plan (as modified by
the Annual Budgets) for such period by more than 20%. Termination of ATV by
either party does not affect the continued operation of PTVSK. Termination of
PTVSK by Daewoo or PEGI gives rise to the right, but not the obligation, of the
other party to terminate ATV.
6.2.2.1 Either Venturer may cure the other Venturer's right to
terminate pursuant to Section 6.2.2 by making a payment to the Venture in the
amount by which revenues fall short of projections minus the allowed variance.
If such Venturer elects to invoke its cure right, it will guarantee any
shortfall below 100% of budget in the following fiscal year. A Venturer's
payment under this Section 6.2.2.1 will be treated as a non-reimbursable payment
to the Venture and shall not affect the Venturers' respective equity interests.
No such payment by a Venturer shall obligate the other Venturer to make a
matching payment to the Venture or to such paying Venturer.
6.2.3 The Venturers may terminate this Agreement and the Venture at
any time by mutual agreement.
6.2.4 Either party may without prejudice to any other remedies it may
have terminate this Agreement and the Venture immediately by notice in writing
to the other on or after the occurrence of any of the following:
6.2.4.1 the commission of one or more material breaches of this
Agreement by the other party which are not capable of remedy; or
6.2.4.2 the commission of a material breach of this Agreement by
the other party which is capable of remedy (a "remediable breach") which shall
not have been remedied within a period of one month after the party in breach
has been given notice in writing specifying that remediable breach and requiring
it to be remedied; provided, however, that such one month period shall be
extended for such additional period as shall be reasonably necessary if that
remediable breach is incapable of remedy within that one month period and during
that one month period the party in breach shall diligently endeavor to remedy
that remediable breach, but only if such extension would not reasonably be
expected to have a material adverse effect on the party giving notice of such
breach;
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6.2.4.3 the bankruptcy, insolvency, general assignment for the
benefit of creditors or similar event, or the appointment of a trustee, receiver
or similar person for the other party or the Venture; or
6.2.4.4 the termination of both Services or, if only one
Service has been launched, the termination of such Service.
6.2.5 PEGI may, without prejudice to any other remedies it may have,
terminate this Agreement by notice in writing to Daewoo if (other than on
account of PEGI's breach or default under this Agreement) the Venture is not
organized as a limited liability company or a joint stock corporation as
mutually determined by the parties as contemplated herein, or the PTVSK Service
has not been launched to hotels as contemplated herein, by the date nine months
after the date of execution hereof; provided, however, that if the execution of
the Superseding Agreements is delayed beyond 90 days from the date of execution
hereof, the parties agree to discuss in good faith an extension of the nine-
month period provided for herein.
6.2.6 Daewoo may, without prejudice to any other remedies it may
have, terminate this Agreement by notice in writing to PEGI if on account of
PEGI's breach or default under this Agreement, the Venture is not organized as a
limited liability company or a joint stock corporation as mutually determined by
the parties as contemplated herein, or the PTVSK Service has not been launched
to hotels as contemplated herein, by the date nine months after the date of
execution hereof.
6.3 Effect of Termination.
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6.3.1 Subject to Section 6.3.2, upon termination of the Venture, the
Trademark License Agreement, Program Supply Agreements, Management Services
Contract and related agreements will automatically terminate and all rights and
obligations of the respective parties thereto will terminate, except for any
claims, etc. that have arisen prior to such termination. Upon termination of the
Venture, each Venturer shall have the right to compel the Venture to be promptly
wound-up and liquidated.
6.3.2 If the Venture terminates, the parties will agree whether and
for how long (if applicable) the Venture will continue to operate (the "Wind-Up
Period"). The Venture will operate during any Wind-Up Period on the basis of the
last approved Annual Budget, unless the parties otherwise agree. During the
Wind-Up Period, the Superseding Documents will continue in effect and the Board
of Directors will take such actions as are necessary to terminate or otherwise
discharge the Venture's obligations to its customers at the end of such period.
If necessary to terminate or discharge such obligations, the Wind-Up Period may
be extended by unanimous consent of the Venturers, which consent may be withheld
in each Venturer's absolute and sole
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discretion. The dissolution, winding-up and liquidation of the Venture will be
suspended during the Wind-Up Period and will automatically take effect at the
end of such period.
7. Languages
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7.1 PEGI will license the Venture to transmit in Korean and English. PEGI
may permit the Venture to transmit in other languages at PEGI's option.
7.2 The Venture will arrange for dubbing/subtitle services to be provided
to the Venture at a competitive price. The Venture will give PEGI access to
dubbed/subtitled programs for use in other territories, or in media other than
Non-Standard Television within the Territory, subject to PEGI's payment of costs
of such access, such as for duplication and delivery.
8. Media
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8.1 The Venture will be granted the exclusive license during the License
Term (as defined below) to transmit the Services in the Territory in all forms
of "Non-Standard Television", which means any television service or channel
which is broadcast or distributed by, direct to homes satellite
("DTH")(including, but not limited to DBS and DSS), "over the air pay"
subscription television ("STV"), pay cable, pay per view, multi-point
distribution systems ("MMDS") or satellite master antenna television system
("SMATV"). Non-Standard Television specifically excludes basic cable and
terrestrial broadcast television.
9. License Term and Media Holdbacks
--------------------------------
9.1 The Venture's License Term with respect to each program (the "License
Term") will commence on the day such program is first exhibited on either of the
Services and will end 18 months thereafter. During the License Term for a
program, PEGI will not license such program licensed to the Venture hereunder to
any third party for television exhibition in the Territory. The parties
acknowledge and agree that certain programming to be supplied by PEGI hereunder
is subject to existing license agreements for media other than Non-Standard
Television, which agreements provide for exclusive windows for exhibition in
such other media (e.g., Home Video windows or theatrical windows) and that such
programming cannot be furnished by PEGI hereunder until the expiration of such
windows. PEGI hereby agrees, however, that future Home Video licensing
agreements for programing which is produced, owned and controlled by Playboy
will limit the Home Video window to no more than six months after the date on
which the applicable program is released in Home Video in the Territory. The
parties acknowledge that Daewoo might be the Home Video licensee of certain PEGI
programs in the Territory; with regard to such programs, Daewoo may notify the
Venture on a case-by-case basis if it wishes to modify the length of the Home
Video window for such a
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program as to which it has licensed the Home Video rights, or if it wishes to
reverse the Home Video and television windows for such program. Following the
License Term, each of PEGI and Daewoo may license any program supplied by it
into basic cable and/or terrestrial television as it sees fit; provided,
however, that PEGI may not run any adult-oriented programs as part of a
"Playboy" service. Notwithstanding the foregoing, at any time, whether during or
after the License Term, each of PEGI and Daewoo can distribute on a branded or
unbranded basis any program in the home video or other private exhibition market
(including, without limitation, discs, cassettes or other forms of video grams
now existing or invented in the future, collectively, "Home Video").
9.2 The Venture will be entitled to transmit each program on 18
broadcasting days.
10. Program Supply
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10.1 Subject to Sections 10.3 and 13, PEGI will supply to the Venture all
of the programming to be exhibited on PTVSK and all available related
interstitial, promo, on-air identifications, logos or similar material.
10.2 PEGI will provide, and the Venture will license under the applicable
Program Supply Agreement, 150 program hours of New Programming to PTVSK for each
year of operation commencing with the launch of PTVSK. For the purposes hereof,
"New Programming" means programs never-before broadcast by either of the
Services. In addition, in the first year of operation, PEGI will provide
additional program hours of programming for programs that would otherwise be
repeats at no cost to the Venture.
10.2.1 If and when the Venture launches the ATV Service as
described in Section 5.2, the number of program hours of New Programming set
forth in Section 10.2 will be increased from 150 to 180.
10.2.2 For purposes of this Agreement, program hours will be
calculated as follows: (a) programs of 11-40 minutes in length will be treated
as 30-minute programs, (b) programs of 41-70 minutes in length will be treated
as 60-minute programs, and (c) programs of 71-100 minutes in length will be
treated as 90-minute programs.
10.3 Until the launch of ATV, each of Daewoo and PEGI will provide, and
the Venture will license for PTVSK under the applicable Program Supply
Agreement, 25 New Movies for each year of operation, in addition to the 150
program hours provided by PEGI pursuant to Section 10.2, commencing with the
launch of PTVSK. In addition, in the first year of operation, each of Daewoo and
PEGI will provide up to 6 additional movies for programs that would otherwise
be repeats at no cost to the Venture. For the purposes hereof, "New Movie" means
a movie never before broadcast by either of the
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Services, and for purposes of this Section 10, "movies" means a block of
programming of 71-100 minutes in length. In the event that Daewoo elects not to
provide the 25 New Movies to PTVSK for each year of operation commencing with
the launch of PTVSK, it will so notify PEGI in writing and PEGI will license to
the Venture under the applicable Program Supply Agreement, and at the applicable
fees specified therein, the number of New Movies that Daewoo has not provided.
10.3.1 Daewoo will determine the specific movies under Section
10.3 it supplies to PTVSK, subject to PEGI's approval (not to be unreasonably
withheld), and PEGI will determine the specific movies under Section 10.3 it
supplies to PTVSK, subject to Daewoo's aproval (not to be unreasonably
withheld). The movies supplied by PEGI to PTVSK hereunder will be similar to the
movies licensed or acquired by PEGI from third parties for exhibition on PEGI's
Playboy TV service in the United States as then currently programmed.
10.3.2 If and when ATV is lauched, as described in Section 5.2,
Daewoo and PEGI shall no longer supply any New Movies to PTVSK pursuant to
Sections 10.3 and 10.3.1, and, instead, each of Daewood and PEGI shall supply
to ATV a minimum of 84 New Movies and a maximum of 102 New Movies, with the
precise number of New Movies within such range to be agreed upon by the parties.
Daewoo will determine the specific movies it supplies to ATV, subject to PEGI's
approval (not to be unreasonably withheld), and PEGI will determine the specific
movies it supplies to ATV, subject to Daewoo's approval (not to be unreasonably
withheld). Any programming supplied by PEGI to ATV hereunder will be consistent
with the quality and content standards of PEGI's AdulTVISION service in the
United States as then currently programmed and the terms and conditions of this
Agreement. In the event that Daewoo elects not to provide the number of New
Movies to be provided by it pursuant to this Section 10.3.2, it will so notify
PEGI in writing and PEGI will license to the Venture under the applicable
Program Supply Agreement, and at the fees specified therein, the number of New
Movies that Daewoo has not provided.
10.4 The Venture acknowledges that PEGI produces, commissions and/or
distributes certain feature films ("Premium Films") with negative costs of at
least $1,000,000 and that Premium Films will be excluded from the Program Supply
Agreements.
10.4.1. Subject to any conflicting rights of third parties
heretofore granted pursuant to other agreements to which PEGI is a party prior
to the date of execution hereof, Daewoo shall have a right of first negotiation
and first refusal to acquire all rights to Premimum Films in the Territory.
PEGI will notify Daewoo of the release of each Premimum Film and the principal
terms on which PEGI is proposing to license such Premium Film in the Territory.
For a period of 30 days from the date of such notice, PEGI will negotiate in
good faith with Daewoo with respect to Daewoo's acquition of
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rights in such Premium Film. If Daewoo does not make an offer to acquire such
rights in such Premium Film, PEGI shall be free to license such Premium Film to
any third party on any terms PEGI shall deem acceptable. If Daewoo makes an
offer to acquire such rights but Daewoo and PEGI are unable to reach agreement
therefor prior to the expiration of such 30 day period, PEGI shall thereafter
be free to license such Premium Film to any third party on terms no less
favorable to PEGI than those set forth in the last written offer made by Daewoo
prior to the expiration of such 30 day period. Other specific details
(including any exceptions or limitations) with respect to such rights of first
negotiation and first refusal shall be agreed upon between the parties in
negotiating the Superseding Agreements.
If Daewoo acquires rights to Premium Films in the Territory,
Daewoo may supply such films to the Venture for PTVSK. PEGI will schedule such
films in consultation with Daewoo, and the applicable Program License Fee set
forth in Section 11.1 for each such film will be paid to Daewoo. If Daewoo
supplies any such films for PTVSK, the number of program hours that PEGI is
obligated to provide under Section 10.2 and Section 10.2.1 will be reduced by
the number of program hours of such film.
11. Program License Fees
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The Venture shall pay program license fees as set forth below (the
"Program License Fees"):
11.1 For programming supplied to PTVSK by PEGI pursuant to Section
10.2, the greater of (a) the Section 10.2 Guaranteed Minimum Program License Fee
(as defined below) for each 12 month period or (b) ***. For purposes hereof,
"Section 10.2 Guaranteed Minimum Program License Fee" means, ***.
11.2 For the movies to be provided by Daewoo or PEGI to either PTVSK
or ATV pursuant to Sections 10.3, 10.3.1 and 10.3.2, the Section 10.3
Guaranteed Program License Fee for the applicable period. For purposes hereof,
"Section 10.3 Guaranteed Program License Fee" means ***.
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
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***
11.3 Payment of Program License Fees. The Program License Fees shall be
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due and payable to PEGI and Daewoo, as applicable, as follows: (a) the Section
10.2 Guaranteed Minimum Program License Fee and the Section 10.3 Guaranteed
Program License Fee shall be calculated on a monthly basis and paid quarterly in
arrears within 30 days after the close of the quarter, and (b) any overages
above the Section 10.2 Guaranteed Minimum Program License Fee shall be
calculated on a annual basis and paid yearly within 45 days after the close of
the applicable year.
12. Trademark License Agreement; Royalties
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12.1 The Venture will pay to PEGI a trademark license royalty (the
"Trademark Royalty") of ***% of the Adjusted Gross Revenue for the PTVSK
Service. "Adjusted Gross Revenue" is defined as all revenues actually received
by the Venture from subscribers to the PTVSK Service (including pay per view
revenues) and all other revenues from operation of the PTVSK Service by the
Venture, less (a) consumption and other taxes (other than income taxes), (b)
costs paid by the Venture to protect the trademarks licensed by PEI pursuant to
the Trademark License Agreement, and (c) any other amounts required to be
deducted in calculating trademark license royalties under applicable South
Korean law, as in effect from time to time. Without limiting the foregoing, in
the event that the revenue of the PTVSK Service includes streams from
advertising and/or home shopping, such revenue will be included in the Adjusted
Gross Revenue as defined herein. The Trademark Royalty shall be calculated on a
monthly basis and paid quarterly within 30 days after the close of the
appropriate quarter.
12.2 PEGI will cause PEI to grant to the Venture a license to use the
trademarks "Playboy" and the "Rabbit Head Design" and such other Playboy
trademarks as will be described in the Trademark License Agreement in connection
with PTVSK and the marketing and promotion of PTVSK. The grant of license will
be made to the Venture on an exclusive basis for the Service but only with
respect to Non-Standard Television and only in the Territory. The only
exceptions to the foregoing exclusivity will be (a) customary presentation and
logo credits in the title and end credits sequences of programs licensed to
others as permitted hereunder and credit blocks in advertising therefor, and (b)
use of the trademarks in any television service which is not intended for
general reception in the Territory but which is received in the Territory. The
Venture will not sub-license any trademarks licensed under the Trademark License
Agreement except with the consent of PEI. PEI shall have the right to approve
any and all permutations of the trademarks and any secondary, combination or
derivative marks based on the trademarks, all of which, when approved, shall be
the property of PEI and be licensed to the Venture under the terms of the
Trademark License Agreement. PEI will have the right to control and conduct all
proceedings relating to any infringement of
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
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the trademarks in the Territory and any claim that the Venture's use of the
trademarks in the Territory infringes the rights of any third party. The Venture
will indemnify and hold harmless PEI from and against all losses arising from
the use by the Venture of the trademarks. The Venture's use of the trademarks
licensed by PEI shall be conditioned on the parties first having duly recorded
the license (or a short form version thereof acceptable to PEI) in the Korean
Industrial Property Office.
The Venture may also choose to license from PEI, and PEGI will
thereupon cause PEI to license to the Venture, the right to use the trademark
"AdulTVision" and such related trademarks as will be described in the Trademark
License Agreement in connection with ATV and the marketing or promotion of ATV.
If the Venture so chooses to license such AdulTVision trademarks, such license
will be on all of the same terms as are applicable with respect to the
trademarks referred to in the above paragraph, provided that no royalty will be
payable with respect to such trademarks. Alternatively, the Venture may wish to
develop another name and related trademarks for use in connection with ATV,
subject to the approval of Daewoo and PEGI, not to be unreasonably withheld. The
Venture will own all rights to such Venture-developed name and trademarks. Upon
any termination of the ATV Service or Venture, ownership of such
Venture-developed name and marks shall vest equally with Daewoo and PEGI;
provided that neither of them make any use of such name or marks without the
prior written consent of the other.
12.3 Although the programs transmitted by the Services will depict nudity
and allow strong or explicit language, PEGI will not deliver and the Venture
will not transmit scenes or other material depicting any of the following: (i)
the glorification of violence or gratuitous violence, (ii) rape, non-consensual
intercourse or other non-consensual sexual activity, (iii) bondage, incest,
sadism or masochism, bestiality, extreme sexual explicitness or the graphic
close-up of genitals; or (iv) child pornography, including, without limitation,
instances where an actor is the legal age for consent but is portrayed as under
the legal age for consent. In that regard, no actor will appear nude or engaged
in sexual conduct in any program transmitted by the Services who is not at
least 18 years of age. Notwithstanding the foregoing, and subject to the
censorship provisions of Section 19, the standards applied by PEGI from time to
time for Playboy TV and AdulTVision, respectively, in the United States shall be
the controlling standards and any materials transmitted on either such Playboy
service and shall be deemed acceptable for transmission on the respective
Service.
12.4 The parties acknowledge that any material breach by the Venture of
the Trademark License Agreement or of this Agreement with respect to the use of
trademarks will result in irreparable harm to PEI or PEGI, as applicable, for
which there is no adequate remedy at law. Accordingly, PEI or PEGI, as
applicable, shall be entitled to preliminary or temporary equitable relief
pending a final determination in accordance with the dispute resolution
provisions provided below, without the necessity of posting
13
bond unless otherwise required by applicable law, by way of any or all of the
temporary and permanent injunctions and such other relief as a court of
competent jurisdiction may deem just and proper.
13. PEGI Programming and Operational Responsibilities
-------------------------------------------------
Subject to Sections 10.3 through 10.3.2, PEGI will control and manage all
facets of the programming for PTVSK. This will include:
13.1 Exclusive PTVSK Program Supplier. Subject to Sections 10.3 through
--------------------------------
10.3.2., PEGI will be the exclusive supplier of all programming shown on PTVSK,
regardless of whether such programming is produced or owned by PEGI, or whether
PEGI acquires such programming for the Venture. The costs of producing or
acquiring such programming furnished by PEGI for the Venture will be borne by
PEGI. Notwithstanding the foregoing, the Venture will have the right at its own
cost to produce its own programming targeted to the South Korean market pursuant
to Section 13.2 ("Venture-produced Programming" or a "Venture-produced
Program").
13.2 Venture-Produced Programming. Venture-produced Programming will be
----------------------------
developed by mutual agreement between Daewoo and PEGI. Such programming will be
consistent with PEGI's standards and subject to PEGI's approval, not to be
unreasonably withheld, and will be produced locally by a production company
selected by PEGI from one or more (as necessary) lists of such companies
supplied by Daewoo. A budget for Venture-produced Programming will be identified
in the Business Plan and Annual Budgets.
13.2.1 If the Venture produces such programming, the Venture will (i)
be responsible for arranging and contracting for all production matters,
including engaging talent, payroll and employment matters, securing facilities
and supplies and securing all production and errors and omissions insurance, all
consistent with PEGI's standards and subject to PEGI's approval, not to be
unreasonably withheld and (ii) bear all production and completion risk and
responsibility and will be responsible for compliance with local laws and
regulations.
13.2.2 PEGI may recommend a supervising producer for a Venture-
produced Program. If such person is approved by Daewoo (which approval will not
be unreasonably withheld), such person will be paid in accordance with the
Venture's production budget; if neither such person nor a substitute is
approved, the Venture will allow such person to supervise production, but at
PEGI's expense. Such supervising producer shall have control over the content
and look of the program, consistent with the standards for the Playboy
Programming.
14
13.2.3 With respect to each Venture-produced Program, PEGI will have
10 business days following the receipt of a program to approve such program
(which approval will not be unreasonably withheld) or request changes; if no
such approval or request for changes is delivered to the Venture within this 10
business day period, PEGI will be deemed to have approved such program. The
costs of making changes requested by PEGI will be borne by the Venture.
13.2.4 After the Venture makes any changes requested by PEGI pursuant
to Section 13.2.3, PEGI will have 5 business days from receipt of the changed
program to approve such program (which approval will not be unreasonably
withheld) or request additional changes; if no such approval or request for
changes is delivered within this 5 business day period, PEGI will be deemed to
have approved such program. If the changes initially requested by PEGI have not
been made to PEGI's reasonable satisfaction, the costs of making further changes
to conform to such initial comments will be borne by the Venture. Any further
changes not previously requested by PEGI will be borne by PEGI.
13.2.5 After the Venture makes any changes requested by PEGI pursuant
to Section 13.2.4, PEGI will have 5 business days from receipt of the changed
program to approve such program (which approval will not be unreasonably
withheld) or request additional changes; if no such approval or request for
changes is delivered in this 5 business day period, PEGI will be deemed to have
approved such program. The costs of making any changes previously requested by
PEGI but not satisfactorily made shall be borne by the Venture, and any further
changes not initially requested by PEGI will be borne by PEGI.
13.2.6 The inclusion of Venture-produced Programming in the Venture's
program block will be in addition to the minimum number of program hours and
movies to be supplied by Daewoo or PEGI.
13.2.7 PEGI will have the right, in its sole and absolute discretion,
to withhold approval of production by the Venture of any programs or other
materials that are Playboy-branded, contain Playboy-identified content or are
otherwise identified as a Playboy-related product (collectively, "Playboy
Identified Programs"). In the event the Venture wishes to produce any Playboy
Identified Program, PEGI shall have the right, but not the obligation, to elect
to finance fully the Venture's production thereof. Any such Playboy Identified
Program which is so fully financed by PEGI is hereinafter referred to as a "PEGI
Financed Ventured-produced Program". PEGI will own the copyright and all
distribution rights in and to any such PEGI Financed Venture-produced Program.
PEGI will license the same to the Venture for a license fee to be negotiated by
the parties in good faith and to be included in the appropriate Superseding
Agreements.
15
13.2.7.1 PEGI will grant Daewoo an exclusive license to
distribute the PEGI Financed Venture-produced Programs within the Territory in
theatrical and home video media. For this distribution, Daewoo will receive a
distribution fee equal to ***% of gross revenues and be entitled to
reimbursement for customary distribution costs and expenses. Accountings to
Playboy will be on a quarterly basis, within 30 days after the close of the
relevant quarter, with the excess of revenues over Daewoo's distribution fee and
distribution costs and expenses to be paid over to PEGI. Although Daewoo makes
no guaranties to PEGI regarding such distribution, Daewoo will use its
commercially reasonable efforts to maximize the license fee it obtains from
third parties for such PEGI Financed Venture-produced Programs. Daewoo will
license such programming on terms substantially equivalent to terms applicable
to the licensing of Daewoo's own similar programming; provided, that PEGI will
have the right to approve any such transaction and will have the annual right to
review the records of Daewoo with respect to all such licensing activities, upon
reasonable notice, to ensure compliance with the terms hereof. If Daewoo
acquires PEGI Financed Venture-produced Programs (or specific programs or series
of programs therefrom) for use in a Daewoo-owned or -operated service or media,
Daewoo will acquire such programs on arms' length terms to achieve fair market
prices for PEGI with respect to such programs. If the PEGI Financed Venture-
produced Programs are "bundled" with other programming by Daewoo in the course
of its distribution efforts, Daewoo will make a fair and good faith allocation
to such PEGI Financed Venture-produced Programs of the fees received. Except as
provided in this Section 13.2.7.1, neither the Venture nor Daewoo shall be
entitled to share in any revenue derived from any such PEGI Financed Venture-
produced Program outside of the Territory or in any media other than Non-
Standard Television in the Territory. With respect to any Playboy Identified
Program which PEGI approves for production by the Venture but does not elect to
fully finance, PEGI would nevertheless own the copyright thereto but (a) during
the term of the Venture, distribution rights to such Venture financed and
produced Playboy Identified Program would be licensed to PEGI pursuant to
Section 13.2.8 below and (b) in the event of any dissolution of the Venture,
Daewoo would continue to share in any revenue derived from any subsequent
exploitation of such program in proportion to the respective interests of Daewoo
and PEGI in the Venture as of the date of dissolution.
13.2.8 The Venture will xxxxx XXXX an exclusive license to
distribute the Venture-produced Programming (other than PEGI Financed
Venture-produced Programs) outside the Territory in all media and within the
Territory in all media other than Non-Standard Television. For this
distribution, PEGI will receive a distribution fee equal to ***% of gross
revenues and be entitled to reimbursement for customary distribution costs and
expenses. Accountings to the Venture will be on a quarterly basis, within 30
days after the close of the relevant quarter, with the excess of revenues over
PEGI's distribution fee and distribution costs and expenses to be paid over to
the Venture. Although PEGI makes no guaranties to the Venture regarding such
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
16
distribution, PEGI will use its commercially reasonable efforts to maximize the
license fees it obtains from third parties for such Venture-produced
Programming. PEGI will license such programming on terms substantially
equivalent to terms applicable to the licensing of PEGI's own similar
programming; provided, that the Venture will have the right to approve any such
transaction within the Territory and will have the annual right to review the
records of PEGI with respect to all such licensing activities, upon reasonable
notice, to ensure compliance with the terms hereof. If PEGI acquires Venture-
produced Programming (or specific programs or series of programs therefrom) for
use in a PEGI-owned or -operated service or media, PEGI will acquire such
programs on arms' length terms to achieve fair market prices for the Venture
with respect to such programs. If the Venture-produced Programming is "bundled"
with other programming by PEGI in the course of its distribution efforts, PEGI
will make a fair and good faith allocation to such Venture-produced Programming
of the fees received.
13.3 Program Mix.
-----------
13.3.1 PTVSK: PEGI may program the PTVSK Service with any of the
following, provided that such programming shall be of a quality and nature
comparable to the programming shown on Playboy TV as programmed in the United
States from time to time: (a) "Playboy Programming", which is programming
produced, co-produced or owned by PEGI or one of its affiliates, or which is
programming acquired by PEGI or one of its affiliates for multiple territories
around the world, including the Territory; (b) "Venture Specific Programming",
which is programming acquired by PEGI or one of its affiliates specifically for
PTVSK; and (c) Venture-produced Programming, which is programming produced by
the Venture pursuant to Section 13.2; provided, however, that prior to the
launch of ATV, PEGI shall include in the program mix for PTVSK the movies to be
provided by the parties pursuant to Section 10.3.
PEGI will determine the mix of Playboy Programming, Venture Specific
Programming and movies provided by the parties pursuant to Section 10.3, PEGI
will determine the manner in which the Venture-produced Programming is
scheduled. As noted in Section 13.2.6, Venture-produced Programming will be in
addition to the 150 program hours or 180 program hours, as applicable, of New
Programming supplied by PEGI, and the movies supplied by Daewoo and PEGI to
PTVSK each year.
13.3.2 ATV: The parties will agree on the scheduling of the
---
programming on ATV, it being the intent that the rotation/duration/content of
the programs supplied will be reasonably related to the number of New Movies
supplied by each party under Section 10.3.2.
13.4 Interstitials/Promos/On-Air Look. In consultation with the Venture,
--------------------------------
PEGI will determine and direct the production and compilation of all
interstitial and
17
promotional materials, as well as developing the on-air look of PTVSK and ATV.
The costs of such production and compilation will be borne by the Venture.
13.4.1 Alternative Means of performance. In the event the Venture can
--------------------------------
more cost effectively perform some or all of the functions described in Section
13.4 the Venture shall, at PEGI's request, assume such functions, although PEGI
will retain control content and quality of such transferred functions.
13.5 Delivery Materials.
------------------
13.5.1 For PTVSK and ATV: PEGI will supply one copy of each program,
-----------------
interstitial, promo or other relevent item it is to furnish to the Venture, with
the costs of duplication and shipping from Los Angeles to be borne by the
Venture. Similarly, Daewoo will provide one copy of all such materials which it
is to furnish to the Venture, with the costs of duplication and shipping to be
borne by the Venture. Assembly of the finished program block for each Service
will be implemented by the Venture at PEGI's direction and to PEGI's
specification. PEGI will provide a nightly program log to enable the Venture's
technical personnel to properly compile a given night's programming. The Venture
will bear the costs of dubbing/subtitling and any necessary format conversions.
PEGI and Daewoo will provide such materials to the Venture in sufficient time to
provide for efficient implementation by the Venture.
13.5.2 Certificate of Erasure. At the end of the License Term for each
----------------------
item delivered to the Venture (excluding items that have been dubbed or
subtitled and which PEGI desires to acquire pursuant to the terms hereof), the
Venture will erase the tapes of such items and deliver to PEGI a certificate of
erasure with respect thereto.
14. Operating Responsibilities
--------------------------
14.1 The Venture will employ a staff of sufficient size to efficiently
handle all day-to-day sales and distribution, marketing, technical matters and
other appropriate matters.
14.2 The Venture will secure errors and omissions and other customary
liability insurance for the Venture covering exhibitions of programming by the
Venture, which insurance policies shall meet PEGI's customary standards and
otherwise be reasonably acceptable to PEGI, and liability and other insurance
covering the activities of the Venturer consistent with good business customs
and practices in South Korea. All insurance policies shall name PEGI, Daewoo and
their respective affiliates as additional insureds.
14.3 Pursuant to the Management Services Contract, Management Co. will
handle many of the day-to-day operational and financial responsibilities of the
Venture
18
under the supervision of the Representative Director, with the specific nature
and scope of the services to be provided to be agreed upon in negotiating the
Superseding Agreements. Management Co. will receive a fee of ***% of the
Adjusted Gross Revenue of PTVSK.
14.4 The Venture will be responsible for making arrangements for satellite
transponders as necessary to insure coverage of the entire Territory. All costs
of assembly, dubbing, subtitling, shipping, customs and duties, duplication,
production of original "wrap around" material, and similar functions will be
paid by the Venture. In the event PEGI expends its own funds for such services,
such costs will be "rebilled" to the Venture, with the Venture to
reimburse PEGI within 30 days. All costs shall be rebilled "at cost" with no
markup by PEGI. The Venture will provide, or arrange for, dubbing/subtitle
services on the terms set forth in Section 7.2. The Business Plan will attempt
to identify the type and magnitude of these costs, with operating changes to be
made as needed via subsequent Annual Budgets.
14.5 The Venture will obtain office facilities/computer and
telecommunications infrastructure/other support services as needed.
15. Venture Ownership, Capitalization and Governance
------------------------------------------------
15.1 Formation of Venture. The Venture will be organized as a limited
--------------------
liability company or a joint stock corporation, as shall be mutually determined
by the parties, under the laws of South Korea.
15.2 Ownership Provisions.
--------------------
15.2.1 The Venture will initially be owned 85% by Daewoo and 15% by
PEGI.
15.2.2 The parties acknowledge that current South Korean law restricts
the maximum ownership interest that investors are permitted to hold in a company
engaged in the business of the Venture. If and to the extent it becomes
permitted under applicable law, PEGI shall have the right to increase its
percentage interest, up to 49% of the Venture. PEGI can buy its additional
percentage interests in the form of additional shares from Daewoo once per
fiscal year, in minimum increments of 5%. Until the end of the fiscal year in
which cash breakeven occurs, PEGI can buy additional shares from Daewoo at the
Founders' Price; after breakeven, PEGI's buy-in price will be a pro rata portion
of the going concern value of the Venture, to be mutually agreed by the parties
or determined by a mutually agreed third-party expert (i.e., the price per share
will be going concern value divided by 100). The Founders' Price means the total
capitalization (the "Total Capitalization") of the Venture as determined in the
approved Business Plan divided by 100 (a "Price Per Share Point"); provided,
however, that if the
*** Confidential information omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.
19
projection for Total Capitalization of the Venture according to the approved
Business Plan (as updated by the Annual Budget) at the time PEGI announces its
intention to purchase additional shares is lower than the Total Capitalization
identified in the approved Business Plan attached to this Agreement by 10% or
more, then the Price Per Share Point will be recalculated according to such
lower Total Capitalization.
15.2.3 Restrictions on Transfers of Interests. No member of the
--------------------------------------
Venture may transfer ownership interests to any third party without the consent
of all the other members; provided, however, that a party may transfer ownership
interests to an affiliate if the transferor or its parent guarantees the
financial or in-kind obligations of the transferee and, if any approvals are
required under South Korea law for any such guarantees to be enforceable,
satisfactory written evidence of all such approvals is delivered to the other
Venturers by the proposed transferor.
15.2.4 Additional Rights Regarding Shares. Without limiting the
----------------------------------
requirements described above regarding approval of any transfer of shares in the
Venture, the parties shall have preemptive rights and "come-along" rights and
participation rights on customary terms in the event that either party desires
to sell some or all of such party's shares in the Venture pursuant to a bona
fide third-party offer or pursuant to a public offering of shares by such party.
PEGI will have the right to come-along or otherwise participate in any such
transaction up to a percentage equal to PEGI's then-current ownership interest
in the Venture.
15.3 Capitalization.
--------------
15.3.1 The initial capital contribution of Daewoo will be the
equivalent in Korean Won of U.S. Dollars equal to the greater of (a) the
minimum, if any, required under applicable South Korean law, or (b) the amount
shown in the Business Plan as required of Daewoo with respect to the first
fiscal quarter. The initial capital contribution of PEGI will be the equivalent
in Korean Won of the greater of (a) the minimum, if any, required under
applicable South Korean law, or (b) the amount shown in the Business Plan as
required of PEGI with respect to the first fiscal quarter. Daewoo and PEGI shall
fund their initial capital contributions in cash.
15.3.2 If necessary to cover the deficits of the Venture, each member
shall contribute additional capital pro rata in accordance with its respective
percentage interests, with such capital calls subject to the aggregate maximum
of the equivalent in Korean Won of 5 million U.S. Dollars. The Business Plan
will include an estimated schedule of such additional capital calls, which are
expected to occur quarterly at the beginning of the respective quarter,
commencing with the second fiscal quarter. Once Playboy's contribution reaches
the equivalent in Korean Won of 750,000 U.S. Dollars Playboy shall not be
required to make any further capital contributions, except if and to the extent
required under applicable law. Daewoo or related entities will lend funds to
20
the Venture as necessary to cover the cash requirements of the Venture to the
extent that such cash requirements cannot be covered out of the Venture's cash
flow, the Venture's capital or any permitted third party borrowings of the
Venture. Such loans to the Venture will bear interest at a rate to be negotiated
by PEGI and Daewoo in good faith and to be included in the appropriate
Superseding Agreements (the "Applicable Rate"). Funds advanced by Daewoo and its
related entities shall be evidenced by promissory notes of the Venture payable
upon the demand of Daewoo; provided, however, that Daewoo shall not make demand
thereon or be entitled to receive payment therefor until and unless and only to
the extent that there is sufficient operating profit in excess of amounts
reserved for payment of current and anticipated liabilities, including any
liabilities owed to Daewoo (including management fees and Program License Fees
payable to Daewoo) and any Trademark Royalties and Program License Fees payable
to PEGI, or otherwise needed for use in the operation of the Venture's business
for the current period, as determined in good faith by the Board of Directors.
PEGI will not be obligated to guarantee loans made to the Venture by third
parties or Daewoo or its related entities.
15.4 Governance Provisions.
---------------------
15.4.1 The day-to-day management of the Venture will be delegated to
a Representative Director to be mutually approved by the Venturers, and subject
to removal by either of the Venturers. The Representative Director will report
to and be subject to the direction of a Board of Directors comprised of four
representatives of Daewoo and two representatives of PEGI.
15.4.2 The Shareholders Agreement will include appropriate minority
protections, including, but not limited to, provisions requiring the approval of
PEGI prior to the Venture taking any of the following actions: (i) any amendment
to the Superseding Agreements, (ii) any merger or other reorganization of the
Venture, (iii) the issuance of additional interests in the Venture, declaration
of dividends, stock splits, reverse stock splits or redemption of shares, (iv)
any distribution by the Venture with respect to the interests therein other than
distributions of operating profits (including, but not limited to, any
distribution of non-cash assets), (v) the Venture taking actions that are
inconsistent with an approved Business Plan or Annual Budget, or which are
otherwise outside the ordinary course of business, including but not limited to
the incurrence of indebtedness in excess of the levels contemplated by the
applicable Business Plan or Annual Budget, (vi) the Venture entering into any
business activities except as contemplated herein, (vii) loans by the Venture to
any member, (viii) any transaction with an affiliate of any member (other than
the Superseding Agreements), (ix) retaining outside counsel or accountants for
the Venture, (x) tax decisions which could have a material adverse impact on
PEGI or the Venture or (xi) except as expressly provided herein, the
termination, dissolution or liquidation of the Venture: provided, however, that
the matters recited in items (iv), (vii), (viii), and (ix) shall be subject to
21
such modifications as may be agreed upon between the parties in negotiating the
Superseding Agreements.
15.4.3 It is the parties' intent that the structure of the Venture as
a limited liability company or joint stock corporation, as shall be mutually
determined, will limit the liability of the members for liabilities of the
Venture to their respective interests in the Venture. However, if either Daewoo
or PEGI becomes directly liable for any liability of the Venture resulting from
an action of the other Venturer taken without the approval (on the terms
provided herein) of such Venturer, then the Venturer taking such action will
indemnify and hold the Venturer suffering such liability harmless from and
against any liability arising from such action. The prior sentence shall not
apply to liabilities of the Venture arising from censorship matters with respect
to a program supplied in good faith by a Venturer.
15.4.4 Each member of the Venture will have the right to examine the
books and records of the Venture, and will have the annual right to audit or
cause an audit of the books and records of the Venture upon not less than 10
business days prior notice. The Management Co. under the supervision of the
Representative Director will prepare regular periodic financial statements and
annual financial statements to be prepared in accordance with GAAP. At the
request of any member, the annual financial statements will be audited by a
nationally recognized accounting firm.
16. Distribution of Profits
-----------------------
The Venture will make distributions of operating profits on an annual basis
to each Venturer, in proportion to its percentage interests at the end of that
year. If the ownership percentages of the Venture change during a given year,
the Venture will calculate simple arithmetic "mean" ownership positions for each
party for that year. For example, if PEGI is permitted to increase its ownership
in the Venture and chooses to purchase an additional 20% share, and if such
purchase occurs at the beginning of the fourth month of such year, then PEGI's
share of the Venture profits for that year will be [(15% * 3) + (35% * 9)]/12.
The Venture will not withhold distributions except as necessary to provide for
the reasonable conduct of the Venture's business as detailed in the Business
Plan (as modified by the Approved Budget for a given fiscal year).
17. Advertising
-----------
Daewoo and PEGI shall negotiate and mutually determine in the Superseding
Agreements all details regarding advertising, if any, on the Services, including
any advertising by the Venturers, as well as (consistent with the standards set
forth below) all matters relating to the type and nature of advertising to be so
carried. If the Venture carries advertising, the Services will at all times
abide by the following advertising standards:
22
17.1 Categories that are not acceptable for advertising are firearms (or
advertisements from any gun lobby organization) and other weapons; explosives or
fireworks; massage parlors; telephone sex lines; sex clubs; sexually explicit
audio visual products (e.g., X-rated or similar "hardcore" videos); sex toys;
materials depicting graphic sexual conduct, violence, rape or non-consensual
sex, sadism, sadomasochism, bondage, incest, bestiality, child pornography,
including without limitation instances where an actor is the legal age for
consent but is portrayed as under the legal age for consent but is portrayed as
under the legal age for consent; classified advertising; advertising for
psychics or similar services; religious organizations and/or cults.
17.2 The Venture will not accept advertisements for magazines which
compete with any edition of the "Playboy" magazine or for any other publication,
product or service published, produced, financed, branded, identified with or
distributed by any person who is engaged in the publication or distribution of
any magazine which competes with any edition of the "Playboy" magazine.
18. Non-Competition and Exclusivity
-------------------------------
18.1 Neither of the parties nor their affiliates will hold an ownership
position of any kind in any competing primarily adult oriented television
service in the Territory without the express written permission of the other.
Further, neither of the parties nor their affiliates will distribute any
product, service or programming in any media that carries the brand or name of
or is identified with the publisher of a magazine or other publication that
competes with any edition of the "Playboy" Magazine. As used in this Agreement,
"adult oriented" means the service or program in question is erotic in nature
and features nudity. The ownership or distribution of R-rated feature film
produced by major studios does not represent ownership or distribution of
"adult-oriented" programming for the purposes of this provision. In addition,
nothing contained in this Agreement shall be deemed to (a) preclude PEGI or any
of its affiliates from owning or operating or providing programming for another
Playboy TV service in the Territory in any media, including Non-Standard
Television, if the PTVSK Service is terminated for any reason, but the Venture
continues to operate the ATV Service, or (b) preclude either party from owning
or operating or providing programming for an adult service primarily featuring
programming of the type primarily featured on the ATV Service if the ATV Service
is terminated for any reason but the Venture continues to operate the PTVSK
Service; provided, however, that the above restriction regarding products,
services or programming that carries the brand or name of or is identified with
the publisher of a magazine or other publication that competes with any edition
of the "Playboy" magazine shall continue to apply.
23
19. Censorship
----------
If a certain program or series of programs is censored by the Korean
government or the Venture reasonably believes it to violate South Korean
censorship laws, the Venture will, upon consultation with PEGI, edit the program
such that it will be suitable for airing in the Territory. The Venture will use
all reasonable good faith efforts to modify any censored program to comply with
the censorship requirements, with any editing changes to be subject to the
approval of the party that furnished such program. The party that furnished such
program may, at its option, substitute another program for the one in question
if it feels that the integrity of the affected program will be compromised
because of the editing necessary to satisfy censorship officials. If the Venture
believes that the editing is cost prohibitive, it may request that the
applicable party substitute another program for the one in question. All costs
of editing will be borne by the Venture.
20. Dispute Resolution
------------------
20.1 Any dispute arising out of or relating to this Agreement shall be
resolved in accordance with the procedures specified in this Section 20, which
shall be the sole and exclusive procedures for the resolution of any such
disputes; provided, however, that this Section 20 shall not apply to any dispute
concerning the validity, ownership or other rights with respect to the
trademarks licensed by PEI to the Venture pursuant to the Trademark License
Agreement, and instead any such dispute shall be litigated in a court of law.
The parties intend to include substantially similar provisions in the
Superseding Documents so that the following provisions will continue to govern
dispute resolution with respect to the Venture and the Venturers. The parties
intend that these provisions shall be valid, binding, enforceable and
irrevocable and shall survive any termination of this Agreement or the
Superseding Agreements.
20.2 The parties shall promptly notify each other in writing of any
dispute arising out of or relating to this Agreement. The parties shall attempt
in good faith to resolve any dispute arising out of or relating to this
Agreement promptly by negotiation between executives who have authority to
settle the controversy. All reasonable requests for information made by one
party to the other will be honored. All negotiations pursuant to this clause are
confidential and shall be treated as compromise and settlement negotiations for
purposes of applicable rules of evidence.
20.3 If any such dispute remains unresolved within 30 days of original
notice thereof, each party shall refer the dispute to a more senior executive of
such party who has authority to settle the dispute and who shall likewise meet
with the other to attempt to resolve the dispute.
24
20.4 Any controversy or claim arising out of or relating to this Agreement
or the breach, termination or validity thereof, which remains unresolved 45 days
after original notice thereof shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce; provided, however, that if
either party will not participate in a non-binding procedure described above,
the other may initiate binding arbitration before expiration of the above
period. The tribunal shall consist of a sole arbitrator appointed jointly by the
parties. In the case of the parties failing to choose a sole arbitrator, the
tribunal shall consist of three arbitrators, two of whom shall be appointed by
the respective parties and the third of whom shall be appointed jointly by the
first two. Each arbitrator shall be knowledgeable in matters similar to those
involved in the business of the Venture. The place of arbitration shall be
Sydney, Australia, or such other location as the parties may agree. The language
of the arbitration shall be English. Each arbitrator shall be independent and
unrelated to any of the parties.
20.5 Except as expressly provided below, the arbitrator is not empowered
to award damages in excess of compensatory damages and each party hereby
irrevocably waives any right to recover such damages with respect to any dispute
resolved by arbitration. The arbitrator shall have the authority to include, as
an item of damages, the costs of arbitration, including legal fees and expenses,
incurred by the prevailing party and to apportion such costs among the parties
on a claim by claim basis as such party prevails thereon. For purposes of the
foregoing, the "prevailing party" shall mean the party whose final settlement
offer (or other position or monetary claim) prior to the start of arbitration is
closest to the judgement awarded by the arbitrator, regardless of whether such
judgement is entered into in favor of or against such party.
20.6 All negotiations pursuant to Sections 20.2,20.3 and 20.4 are
confidential and shall be treated as compromise and settlement negotiations for
purposes of applicable rules of evidence.
20.7 Each party agrees that service by registered or certified mail,
return receipt requested, delivered to such party at the address provided in
Section 21.9 (Notices) below, will be deemed in every respect effective service
of process upon such person for all purposes of these provisions relating to
arbitration. Subject to Section 20.1, each party irrevocably submits to the
jurisdiction of the courts of the State of California and with respect to all
matters governed by the laws of the State of California and to the jurisdiction
of the courts of South Korea with respect to all other matters, in each case
pursuant to Section 21.4, regardless of where any alleged breach or other
action, omission, fact or occurrence giving rise thereto occurred. Each party
hereby irrevocably waives any claim that any action or proceeding brought in
California or South Korea in accordance herewith has been brought in any
inconvenient forum.
25
20.8 The parties will negotiate in good faith and agree on such further or
modified arbitration provisions as are reasonably necessary for awards and other
judgements resulting from the provisions set forth above to be recognized and
enforceable in the respective jurisdictions of organization of Daewoo and PEGI.
21. Miscellaneous
-------------
21.1 Effective Date. This Agreement will become effective as of the date
--------------
on which it is fully executed by the parties.
21.2 Permits; Approvals; Launch. The parties will use their reasonable
--------------------------
best efforts to cause the Venture to obtain promptly the governmental approvals,
permits and other authorizations necessary to operate the Venture as
contemplated herein. The parties acknowledge their mutual desire to have the
Venture organized and the PTVSK Service launched by June 15, 1997, and in this
regard each party agrees to use its reasonable best efforts to accomplish such
objectives.
21.3 Currency: Payments. Except where otherwise expressly provided to the
------------------
contrary herein or in the Superseding Agreements:
21.3.1 All amounts due from either party to the other or from the
Venture to PEGI, PEI or any of PEGI's other affiliates pursuant to this
Agreement shall be paid in U.S. Dollars. If any portion of such payment is
calculated on the basis of revenues received in other currencies, such revenues
shall be calculated using the exchange rate published in the Wall Street
Journal, as of the business day immediately preceding the date on which the
payment initially is due. Such exchange rate shall also apply to any portion of
a payment which is permitted to be deferred, regardless of whether deferred
payment is represented by a promissory note or other instrument.
21.3.2 All payments owing pursuant to this Agreement will be made by
wire transfer of immediately available funds, subject to any withholding
required by applicable law. Each party will from time to time designate one or
more accounts into which such payments will be made and may designate one or
more accounts into which such payments will be made and may designate one or
more affiliates to receive such payments. Daewoo will cooperate fully with PEGI
in taking, or permitting or causing to be taken such actions as will minimize
any withholding or other taxes or fees applicable to PEGI with respect to
distributions or other payments by the Venture, including the assignment by PEGI
of its rights to receive any payments.
21.3.3 Any payment hereunder not made when due will bear interest
from the date due to and including the date of payment in full at the Applicable
Rate.
21.3.4 The parties agree that if any payment owing by it or any of
its affiliates is precluded or limited by a restriction imposed by jurisdiction
of organization
26
or operation of the payor or the jurisdiction where the payor's funds are
deposited, then an affiliate of such payor not subject to such restriction shall
make the required payment.
21.4 Governing Law. With respect to matters (including, but not limited
-------------
to program supply and trademark matters) involving the Venture's programming or
intellectual property supplied by PEGI or PEI, this Agreement and the
Superseding Agreements shall be governed by and construed under the laws of the
State of California. Otherwise, with respect to all other matters, including,
without limitation, matters or corporate governance and capitalization, this
Agreement and the Superseding Agreements shall be governed by and construed
under the laws of South Korea without reference to conflicts of laws
principles.
21.5 Authority. Each party represents that (i) it has full power and
---------
authority to enter into and perform this Agreement, (ii) this Agreement is the
valid and binding obligation of such party, enforceable against it in accordance
with its terms, and (iii) the performance by such party of its obligations under
this Agreement does not violate any law, rule or regulation binding on such
party or such party's charter documents. Without limiting the foregoing, Daewoo
represents and warrants that its performance of the obligations required of it
under this Agreement in accordance with the terms hereof shall not be
inconsistent with or restricted or limited by any restrictions or limitations
applicable to it under South Korean law regarding investment, lending or issuing
guarantees.
21.6 Assignment; No Third Party Beneficiary. No party hereto shall
---------------------------------------
assign its rights or delegate its obligations hereunder without written consent
of the other party except to an affiliate of such party; provided that no such
assignment shall relieve the assignor of its obligations. The provisions of
this Agreement are for the benefit only of the parties, and no third party may
seek to enforce or benefit from these provisions.
21.7 Agreement Negotiated. The parties hereto are sophisticated and have
--------------------
been represented by lawyers throughout the negotiation and execution of this
Agreement who have carefully negotiated the provisions hereof. As a
consequence, the parties do not believe the presumption of laws or rules
relating to the interpretation of contracts against the drafter of any
particular clause should be applied in this case and therefore waive their
effects.
21.8 Waivers, Remedies Cumulative, Amendments, etc.
---------------------------------------------
21.8.1 No failure or delay by any of the parties hereto in exercising
any right, power or privilege under this Agreement shall operate as a waiver
thereof nor shall any single or partial exercise by any of the parties hereto of
any right, power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privilege.
27
21.8.2 The rights and remedies herein provided are cumulative and not
exclusive of any rights and remedies provided by law.
21.8.3 No provision of this Agreement may be amended, modified,
waived, discharged or terminated, other than by the express written agreement
of the parties hereto nor may any breach of any provision of this Agreement be
waived or discharged except with the express written consent of the party not in
breach.
21.9 Notices. All notices, requests, demands and other communications
-------
required to be given under this Agreement shall be in writing and shall
conclusively deemed to have been duly given (a) when hand delivered to the other
party, (b) the next business day if sent by a generally recognized overnight
courier services that provides written acknowledgement by the addressee of
receipt, or (c) when received, if sent by facsimile or other generally accepted
means of electronic transmission.
if to PEGI to:
--------------
Playboy Entertainment Group, Inc.
Attention: President
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Xxxxxx Xxxxxx of America
Fax number: (000) 000-0000
with a copy to:
Playboy Enterprises, Inc.
Attention: General Counsel
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Fax Number: (000) 000-0000
if to Daewoo to:
---------------
Daewoo Corporation
Attention: Xx. Xxxxxxx Xxx
000 0-Xx Xxxxxxxxxx-Xx
Xxxx-Xx, Xxxxx, Xxxxx
Fax number: 00 0 000 0000
or to such other address, or facsimile transmission number as the relevant
addressee may hereafter by notice hereunder substitute.
28
21.10 Confidentiality.
---------------
21.10.1 Each Venturer and its respective affiliates shall
maintain the confidentiality of all information of a confidential or proprietary
nature which it may have or acquire regarding the customers, business, finances,
assets or affairs of the Venture or the other Venturer and its affiliates except
for (a) any information which is generally available to the public or becomes
generally available to the public other than through disclosure in violation of
this provision or (b) which is required_to be disclosed by applicable law or to
enforce the provisions of this Agreement.
21.10.2 In recognition of each party's understanding that the
other may in the future invite third parties to participate as equity or
non-equity investors or other providers of finance in or to such party or its
respective affiliates, the parties agree that each may provide to such entities
copies of the Shareholders Agreement, Program Supply Agreement, Trademark
License Agreement and other agreements governing the Venture, the Business Plan,
financial statements and other financial information provided by the Venture to
its members, and such other information as would be reasonable in the
circumstances for a potential investor to require. Notwithstanding the
foregoing, no such information will be provided until a confidentiality
agreement for the benefit of the Venture, the Venturers and their respective
affiliates has been signed by such potential investor.
21.10.3 In recognition of the fact that PEGI is a subsidiary of a
publicly held company, the parties agree that PEGI may provide to institutional
investors and analysts such information concerning the Venturer as is
conventional to assist such investors in deciding whether to invest or such
analysts to prepare their reports; provided, that no information may be
disclosed without the prior consent of the Venture that would reasonably be
expected to cause harm to the Venture, including with respect to its competitive
position.
21.11 Public Announcements. Unless otherwise agreed by the parties or
--------------------
as required by law or by the stock exchange on which PEI's stock is traded, no
public
29
announcement will be made by either party or any of their respective affiliates
with respect to the subject matter of this Agreement.
21.12 Addition of the Venture as a Party to the Shareholders Agreement.
----------------------------------------------------------------
If either party so desires, the parties shall cause the Venture to become a
signatory to the Shareholders Agreement for purposes of confirming its agreement
to the terms thereof insofar as they impose obligations on or otherwise apply to
the Venture.
AGREED AND ACCEPTED:
-------------------
PLAYBOYENTERTAINMENT GROUP, DAEWOO CORPORATION
INC.
By: /s/ Xxxxxxx X.Xxxx By: /s/ Ju Ho Jung
-------------------- ----------------
Name: Xxxxxxx X. Xxxx Name: Ju Ho Jung
Title: PRESIDENT Title: EXECUTIVE V.P.
30
EXHIBIT "A"
DEFINED TERMS
The following terms are defined in the indicated Sections of the text of the
within Agreement:
TERM SECTION
---- -------
Adjusted Gross Revenue 12.1
Adult-oriented 18.1
Agreement 1.1
Annual Budget 3.2
Applicable Rate 15.3.2
ATV 1.1
Business Plan 3.1
Daewoo 1.1
DBS 1.2
Founders' Price 15.2.2
Home Video 9.1
License Term 9.1
Management Co. 2.5
MMDS 8.1
New Movies 10.3
New Programming 10.2
Non-Standard Television 8.1
PEGI 1.1
PEI 2.3.1
Playboy Identified Programs 13.2.7
Playboy Programming 13.3.1
Premium Films 10.4
Price Per Share Point 15.2.2
Program License Fees 11
PTVSK 1.1
Representative Director 15.4
Section 10.2 Guaranteed Minimum Program License Fee 11.1
Section 10.3 Guaranteed Program License Fee 11.2
Services 1.1
SMATV 8.1
STV 8.1
Superseding Agreements 2
Territory 4
Total Capitalization 15.2.2
EXHIBIT A-1
Trademark License Agreement 2.3.1
Trademark Royalty 12.1
Venture 1.1
Venture-produced Program 13.1
Venture-produced Programming 13.1
Venture Specific Programming 13.3.1
Venturers 2.1
Wind-Up Period 6.3.2
The following additional terms shall have the meanings set forth below:
"affiliate" means any person controlled, controlling or under common
control with the specified person.
"control" (and controlled and controlling, respectively) means the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of the relevant person (whether by the holding of
shares, the possession of voting rights or otherwise).
"person" means any individual, corporation, partnership, limited liability
company, trust, association or other legal entity.
EXHIBIT A-2
EXHIBIT "B"
TRADEMARK USAGE SUMMARY
Licensee hereby acknowledges that the trade names "Playboy" and "Playmate" and
the registered trademark and service xxxx "Playboy," the Playboy "Rabbit Head
Design" and trade names "The Playboy Channel," Playboy TV "Playboy Television"
and all related or derivative names or marks (collectively the "Playboy Marks")
are the sole and exclusive property of Licensor and that all uses of the Playboy
Marks shall inure solely to the benefit of Licensor, Licensee shall have the
right to develop and distribute advertising, publicity, and promotional
materials relating to the Programs incorporating certain Playboy Marks in
connection with Licensee's rights hereunder ; provided, however, that any such
materials shall:
A. Clearly identify the Playboy Marks using a legible credit line with the
wording "Playboy" (or the applicable Playboy Xxxx, as the case may be) is
the xxxx of and used with the permission of Playboy Enterprises, Inc." or
such other words as Licensor may designate;
B. Be submitted in representative form to Licensor for Licensor's prior
written approval in each case at least thirty (30) days prior to their
intended distribution. Licensor may disapprove any use if, in Licensor's
opinion, such use (i) jeopardizes the validity of any of the Playboy Marks,
(ii) does not conform to previously approved uses of the Playboy Marks,
(iii) does not conform to Licensor's standards, which may vary from time to
time, or (iv) negatively affects or impacts the good name, good will or
reputation of Licensor. Licensee will not disseminate any material or
packaging that has not been so approved by Licensor; and
C. Be issued only in the Korean Language.
It is expressly understood that Licensor shall retain all good will associated
with the Playboy Marks, and no good will from same will inure to Licensee or to
any person or entity other than Licensor. Licensee also must secure Licensor's
prior written approval of all media of advertising and distribution and the
specific publications, broadcasters and exhibitors which will be running the
advertisements. Licensee will not disseminate any advertising material that has
not been so approved by Licensor in each instance. Other than as expressly set
forth in this Trademark Usage Summary, Licensee shall make no use of the Playboy
Marks or any confusingly similar designation without the prior express written
consent of Licensor in each instance. Licensee shall also make no use whatsoever
of any other trademark, trade name or service xxxx that is the property of
Licensor or derived from any of Licensor's programs, suppliers or producers
without the prior express written consent of Licensor in each instance. Licensee
similarly agrees that it will not authorize or purport to authorize any third
party to make any such use, and it will expressly provide in any applicable
third party agreements that such third parties will only be entitled to use such
names and marks in accordance with Licensee's rights hereunder.
Licensee shall have no right to promote, telecast, exhibit, advertise, use or
otherwise exploit in any manner any of the Playboy Marks in connection with the
ATV Service or the programming thereof without the express prior written
approval of Licensor in each instance. Rather, the trademarks, service marks and
other identifying names or marks for the ATV Service shall be licensed by
Licensor or Licensor's affiliate to Licensee under similar usage requirements as
in this Trademark Usage Summary.
EXHIBIT "C"
BUSINESS PLAN
To be attached pursuant to Section 3.1.
